The Murky Ethics of Photography NDAs and Work for Hire Contracts

Why and when to push back

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The past few months, there has been an increase in contracts and NDAs with Biblical-sounding terms, demanding photographers sign away everything but their firstborn. Such NDAs used to be rare until about a year ago, but fueled by the ease of AI-generated fine print, they are becoming alarmingly common.

The terms of some are so draconian that I refuse to sign them, thus losing gigs in the process and wondering how many photographers actually read through them, point by point, and sign anyway. When I received the last NDA, so punitive that it made my brain explode, I realized how this industry is in dire need of transparency. If such forms keep getting signed without a collective pushback, the normalization of exploitative contracts will be impossible to stop.

The NDA in question was for private event coverage, a party on a yacht with four hours of shooting. I quoted my usual fee of 5K for such events, which the client confirmed and asked me to close the date. I did as requested, declining another assignment set for the same evening. Only afterward did they reveal an NDA. Aside from the backwardness of presenting an NDA post-agreement, I’ve never seen a more restrictive and unethical contract.

Here are the main points.

1. Ownership and copyright — In addition to not being able to use the photos for any purposes whatsoever, including personal portfolio, the photographer loses all access to their own work, giving everything to the client and being prohibited from keeping copies of the work.

2. Non-disclosure — Photographer is barred not just from using or keeping photos but also from mentioning or referencing either the event or any communications about it to anyone, publicly or privately, including friends and family, ever.

   ”Contractor understands and agrees that all communications in public, even with employees of Trust and/or the Related Entities, that are or reasonably could be overheard by a third party (e.g., and without limitation, in locker rooms, bars, and restaurants) shall be deemed a breach of this Confidentiality Agreement…”

3. Enforcement — If the photographer slips up and mentions the shoot, even unintentionally, the client reserves the right to sue and seek court orders.

4. Legal Fees — If there’s a legal dispute, and they win (even partially), the photographer is on the hook for all their legal fees. That could be thousands, no matter how small the breach.

5. And the last clause that reads like sketch comedy, stating that a photographer cannot, essentially, do their job.

   ”Contractor also agrees that he/she shall not film or otherwise photograph the Principals and/or their guests, the Principal’s residences and/or publish or

   distribute the same.”

Besides the fact that the yacht NDA was wildly excessive for any photography assignment, reading like either a national security agreement or a contract for an Epstein-esque bacchanal, my biggest issue was the bait-and-switch. The contract was sent two full weeks after the initial request, and only after we had settled dates, money, and expectations. When I replied that I couldn't sign the contract as is and at the current fee, the gig was immediately withdrawn.

Over the past few decades, I’ve signed plenty of NDAs and contracts, from big corporate clients to brands to editorial outlets. NDAs are typically sent at the very beginning of a conversation, before any shoot details are discussed, and their purpose is to keep the client’s identity and event confidential. Contracts come later, focusing more on photo rights than information disclosure, and vary in their restrictions. Some limit usage to personal portfolio; others embargo the images for a year or two. Sucks, but fine. Once I see a commercial NDA and understand the shoot requirements, I adjust my pricing accordingly. If the agreement requires me to give up copyright, which eliminates any future licensing income, I raise my fee to 10K or more instead of the usual 3 to 5K. Most clients agree, a few don’t, but until recently, the process has been mostly straightforward.

Not so in the past year. It seems many have caught on that they can send overreaching, photo-rights-grabbing contracts, and most photographers won’t push back. But they either don’t know how this process is usually handled or don’t care and end up sending these documents after everything’s already been confirmed. A lot of them knowingly test the limits, pushing way past what’s standard with contracts that overreach on purpose.

When it comes to editorial clients, I’ve encountered several sneaky cases where the shoot is pitched as editorial, only to be followed by a work for hire contract. For those unfamiliar with this phrase of doom, it’s a commercial term that strips the photographer of copyright and the ability to license or reuse the photos. In the commercial world that’s not uncommon, but those shoots often pay $30K+, so the photographer isn’t exactly being exploited. Editorial rates, by contrast, usually fall somewhere between $500 and 1K.

One recent work-for-hire contract for an assignment that was presented as editorial, and sent well after everything had already been finalized, included terms so unreasonable that I had to write an email pointing out the excess. One clause gave the client rights to use the photographer’s name, image, and likeness on any platform, in any context, without permission or approval, in perpetuity. It was fine print for a blanket promotional license pretending to be an editorial agreement. The reply from the editor was gracious and the contract was changed to editorial terms, but the whole exchange reflected the sad reality of the industry.

The intention of this post is not to expose anyone, which is why I’ve kept all identities anonymous, but to use transparency as the only real pushback photographers have. I’m sure the yacht gig found someone willing to agree to that NDA, and that many photographers sign work for hire contracts because they feel they have no choice. But asking for changes and refusing to sign exploitative contracts is necessary if we want to prevent these documents from becoming so ubiquitous that they no longer feel outrageous. The more we let them slide, the more we accept the erosion of agency as part of the job. Copyright is often the only part of the work that still belongs to the photographer, and it should not be surrendered lightly, if at all.

If you have similar stories of bad contracts, let me know in comments. And for the sake of awareness, transparency, and fighting back, please share this with your friends in the industry.

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